City council, manager, attorney respond to grand jury report

SOUTH LAKE TAHOE, Calif. – “Major changes” are needed to a South Lake Tahoe City Council that is constantly bickering, routinely drops controversial issues, and operates at a “barely functional level,” according to the 2009-2010 El Dorado County grand jury report.

The report, posted to the grand jury’s website last weekend, also criticizes City Manager David Jinkens for allegedly intimidating employees, alleges City Attorney Patrick Enright coached city staff who testified before the grand jury, and questioned the legality of a $937.50 reimbursement the city paid to Councilman Bruce Grego for legal services related to a potential conflict of interest, despite an El Dorado County Deputy District Attorney’s conclusion the reimbursement appeared legal.

The report recommends further training for South Lake Tahoe’s elected officials and senior staff, taking stronger stances against inappropriate conduct, reviewing the city’s nepotism policy and adhering to the city’s written policies rather than using historically accepted practices.

The report also recommends the city hire an independent consultant to review city practices and make a report available to District Attorney Vern Pierson for possible legal action.

Pierson, Grego and Enright did not return requests for comment on Tuesday.

City Manager David Jinkens declined to comment on specifics of the grand jury’s findings in a Monday e-mail, but said the report would be addressed at a future City Council meeting.

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Under California law, the City Council has 90 days to respond to El Dorado County Superior Court’s presiding judge, Suzanne Kingsbury, regarding grand jury’s report.

“I am working on preparing draft responses to the (grand jury) report and expect to have one within two weeks,” Jinkens said in the e-mail. “The report will then go to the Council for consideration and adoption at a public meeting.”

“I will, however, have detailed responses, which will be made part of the public record enlisting the help of the city attorney and appropriate city staff,” Jinkens added. “The report covers a lot of ground.”

Jerry Birdwell said he concurred with the report’s findings on Tuesday.

“I agree with the findings of the grand jury,” Birdwell said. “I take it as constructive criticism and will do the best as a city councilman to correct the problems presented.”

Birdwell said Tuesday that he is still undecided about whether he will run for re-election in November.

Councilman Bill Crawford said he felt the grand jury’s finding that there are two voting blocs within the City Council was overblown and said the grand jury “came up short” when it recommended additional ethics training for the City Council. The training was adequate, but the follow-through was lacking, Crawford said.

In general, Crawford said he didn’t have any issues with the grand jury’s report.

Mayor Kathay Lovell, who has often exchanged barbs with Crawford during council meetings, said she felt much of the report was directed at the councilman, especially statements regarding violations of California’s open meeting laws by “some” city council members.

The report does not name council members or city staff directly, leaving some of the grand jury’s findings open to interpretation.

A statement about “malfeasance or nonfeasance” by the city council in the report was also likely directed at Crawford, who humiliates people when votes don’t go his way, Lovell said.

She said disagreements among council members are part of the process of governing, but said the disagreements should be handled respectfully.

“Bill is an obstructionist and, because of that, he causes this disruption,” Lovell said.

Despite the report’s criticism of Jinkens, Lovell said she still supported the city manager. She said the grand jury members likely did not have all of the relevant information at the time they created their report.

Councilman Hal Cole said there were some factual errors in the report’s findings that he hoped to clear up when the city drafts its response to the report. He agreed that the current City Council has been unable to effectively work together.

“I didn’t see any malfeasance or corruption, I just saw dysfunctionality,” Cole said Tuesday.

The grand jury is composed of 19 citizen volunteers who conducted “extensive investigations” over the past year, according to a letter from Foreman Rene Van Asten in the report.

1. The City Council should develop a code of conduct, a code of ethics, practice professionalism, and receive training in conflict resolution. Council members should be able to express concerns about city issues without being exposed to ridicule by their fellow Council members.

2. The City Council must be more assertive in dealing with inappropriate conduct by Council members. This should include securing opinions from the city attorney, the El Dorado County District Attorney, the California League of Cities, or other appropriate agencies.

3. The City Council should review the current practice that requires three Council members agree before they can put items on meeting agendas. The procedure for placing items on the agenda should be adopted as written policy.

4. City Council members, elected city officers, and senior appointed city officers should receive mandatory training, on a regular basis, in the duties and responsibilities of their positions.

5. The city should review its written policies on nepotism and job relationships between family members and domestic partners. The policies should be changed as necessary to assure that these relationships do not interfere with city operations, and to promote an atmosphere of cooperation.

6. City employees, starting with City Council members and senior city officials, should receive mandatory training in ethics, sexual harassment, and confidentiality, with emphasis on the Brown Act. The city should consider training from sources other than those used in the past.

7. City officials must find a way to assure that the city adheres to written policies and procedures, and does not allow itself to “cut corners” by using historically accepted practices that violate written policies. Senior city officials and Council members should receive mandatory annual training on policies and procedures. Enforcing adherence to this might require establishment of an ombudsman or inspector general position. ?

• “Constant hostility and bickering among members of the City Council and their unprofessional conduct has resulted in a consistent 3/2 split vote creating two “camps” of Council members. The voting often appears to be the result of Council members pursuing personal agendas rather than operating in the best interests of the city. The bickering and nitpicking between Council members during meetings, combined with hostile comments to media outlets and behind-the-scenes ‘back biting’ has resulted in the failure to address routine and important business entrusted to the Council by the citizens of the city of South Lake Tahoe.”

• “When a city attorney recommended that the city finance director be placed under the direct control of the City Council, rather than the city manager, the finance director expressed strong opposition. This action came after the city attorney had challenged the finance director about the propriety and amounts of an expenditure made by the city. This move for the finance director to be placed under City Council control was a suggestion that had been made by a City Council member in prior years. The city manager, fearing loss of supervisory control of the finance director, advised the City Council that the finance director would probably file an official complaint against the city attorney and the city, charging them with harassment, if the move took place. This statement was viewed by some employees as a threat by the city manager.”

• “During a contentious June 30, 2009, City Council meeting, it was suggested that the city manager should resign. Testimony received indicated the city manager later threatened to file a Workers Compensation claim, hire outside counsel, and sue the city.”

• “Council members and senior staff are unwilling or afraid to address and deal with the existing hostile work environment. In a matter that involved an inappropriate written poem (involving sexual comments from one Council member to another), the city manager and the City Council failed to take action until questioned by the Grand Jury.”

• “The city manager used intimidation to retain control over parts of government. The city manager attempted to keep the finance director under his direct control. He informed the city attorney that he could make the finance director’s complaints against the city attorney “go away” if the city attorney dropped the suggestion to move the finance director under the direct control of the City Council as an ‘at will’ employee.”

• “Prior to being interviewed by the Grand Jury, some employees were counseled by the city attorney on how to testify in a manner that was designed to limit the information that the Grand Jury would receive. City employees who had been subpoenaed to testify before the Grand Jury were instructed by memo that they should not volunteer any information, and they should not attempt to refresh their memories when asked about specific events or topics. The memorandum and the counseling go beyond normal and acceptable witness preparation for testimony in Grand Jury proceedings.”

• “The city’s government employs a notable number of married couples and family members among its employees, commission members, and elected officials. Some of the related employees are in positions of significant influence. Although the policy relating to nepotism does not seem to have been violated, the existence of these close relationships has resulted in an atmosphere where many employees are afraid to discuss operational problems in the city. They are concerned that their observations might be viewed as criticism of family members. In testimony received, there is ‘angst’ by city employees who believe that employees who have spoken about problems within City government have ended up on ‘layoff lists.’ This fear is so pervasive that some witnesses requested assurance, when they appeared before the Grand Jury, that members of the Grand Jury were not related to officers and employees of the South Lake Tahoe city government before they testified.”

• “City Council members and city officials have varying degrees of understanding and openly disagree with the Brown Act. Although bound by the laws of the state of California to obey the same, some violate them on a regular basis.”

• “A City Council member filed a complaint with the Grand Jury that the city manager was operating without authority and not doing his job. The Council member also made these remarks in public. The Grand Jury received testimony and found these accusations without merit and misleading. The City Council hires and supervises the city manager and apparently was unwilling to conduct its own investigation to address these accusations. Instead, the Council attempted to use the Grand Jury as its tool to correct a situation that was completely within their jurisdiction.”

• “Testimony supports that City officers and employees at times operate using accepted historical practices that conflict with official written policy. This has resulted in misunderstandings, contentious City Council meetings, and a public impression that the City’s government operates outside the law. These misconceptions could expose the city to lawsuits.”

• “A member of the City Council requested reimbursement for legal fees paid to an outside law firm. The legal advice consisted of a legal opinion and preparation of a letter to the Fair Political Practices Commission. No contract had been signed and the City Council had not approved the expenditure in advance. The City Manager stated that he gave verbal approval for the expenditure. California State Law clearly states that government contracts for payment may not be backdated. All unusual expenditures should be approved in open session. The City’s Purchasing Policy and Procedural Manual calls for the presence of written contracts when professional services are sought, and makes no provision for payment and reimbursement absent the presence of a contract.”

• “The City Council, in its reports, procedures and by evidence received by the Grand Jury, points to a severely handicapped organization that needs major changes. The 2009-2010 Grand Jury has recommended to the County Supervisor for District V, that the City of South Lake Tahoe needs a ‘Management and Procedural Review’ to be conducted by an independent consultant. The consultant should make their report to the District Attorney for possible legal action. This Grand Jury is of the opinion that an accusation for malfeasance or nonfeasance by this City Council may be appropriate after the study is concluded. The Grand Jury only touched the ‘tip of the iceberg’ in its investigation and recommends that the citizens of South Lake Tahoe get involved with their City government. It is up to the citizens to establish the kind of governance they desire, to exercise their democratic right to vote, and get a City government that works for the common good and in an efficient manner for its citizens.”